Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Monday, October 11, 2010

In Re J.G. (Cal. Ct. App. - Oct. 6, 2010)

Two plainclothes police officers are investigating a gang-related crime in Anaheim on turf that they know belongs to the ATC gang when they see four guys running down the street. One of these young men -- J.G. -- is holding a brick, and several others are holding other throwable items as well (e.g., a rock and part of a lamp). One of the officers has had a variety of conversations with J.G., who has admitted that he's in the ATC gang. And the four men running down the street carrying throwable objects in their hand, including a brick, are screaming things like: "He's over there!"

Stunningly, the police officers are suspicious that a crime might be afoot. That, oh, I don't know, maybe this one gang member and his seemingly gang buddies on gang turf are out to, say, throw a brick at someone who they're chasing. So they get in their car and arrest the dudes. Who, after being questioned, admit that, yeah, they were after someone.

J.G. then files a motion claiming that his arrest was without probable cause. But Justice Bedsworth, writing for his colleagues, disagrees. He correctly notes that we're talking about probable cause here. Sure, it's possible, as Justice Bedsworth characteristically puts it, that J.G. and his gang buddies "were chasing a rabbit or playing a game." Because there are lots of rabbits on gang turf in central Anaheim, and the classic way of catching them is to hit them with a brick.

But it's also "probable" that what we're seeing is the possession of a deadly weapon with intent to assault. And that justifies the arrest. Even though, as the Court of Appeal forthrightly recognizes, the issue is "close".